November 2020 New Jersey Legal HR Updates

New Jersey Governor Signs Executive Order 192

What happened?
Governor Murphy signed Executive Order (EO) 192 on October 29, 2020 with an effective date on November 5, 2020.

What are the details?
EO 192 includes many different new requirements for New Jersey employers. EO 192 will apply to every business, non-profit, and governmental or educational entity. The order mainly focuses on new requirements for employers that require or permit employees to work at the physical workplace. Specifically, the requirements touch on the following subjects:

  • Physical distancing
  • Face masks or coverings
    • Includes language permitting employers to deny access to the workplace to individuals who will not wear a face mask or covering
  • Availability of sanitization materials
  • Employee hygiene requirements
  • Workplace sanitization
  • Routine employee health checks
  • Notification requirements for COVID-19 exposures in the workplace

Some employees are exempt from the requirements listed in EO 192 if they interfere with the discharge of their operational duties. These employees are: first responders, emergency management personnel, emergency dispatchers, healthcare personnel, court personnel, law enforcement, corrections personnel, hazardous material responders, transit workers, child protection personnel, child welfare personnel, housing or shelter personnel, military employees, and governmental employees engaged in emergency response activities.

Additionally, the order requires that the New Jersey Department of Labor and Workforce Development produce compliance and safety training for employers and employees through its programs, as well as provide notices or other informational materials to inform workers of their rights and employers of their obligations.

An article going in more detail on the requirements of the executive order can be found here.

The EO can be found here.

What do employers need to do?
New Jersey employers should review the requirements above and update their workplace policies as needed to remain in compliance.

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Governor Murphy Signs Industry-Specific COVID-19 Restrictions

What happened?
In response to a recent COVID-19 surge, New Jersey Governor Murphy issued Executive Order (EO) 194, which impacts food and beverage establishments, scholastic and youth sports, and personal care services.

What are the details?
Of the impacted industries, the food and beverage industry were given the majority of the new restrictions. Specifically, those working in these industries will need to drastically reduce their seating capacity, by either spacing out tables by the minimum six feet apart in all directions, or by erecting barriers between tables, per guidance from the New Jersey Department of Health. Indoor operations must cease between the hours of 10:00 p.m. to 5:00 a.m., every day. Additionally, indoor bar areas are now prohibited for establishments to use. However, the order does expand the definition of outdoor seating area to now also include enclosed outdoor areas, provided that they meet certain requirements like ventilation and cleaning requirements.

Youth sports will be restricted by disallowing out-of-state travel for any activities and indoor sports venues are not to be used. These restrictions do not apply to collegiate or professional sports activities.

Personal care facilities will need to limit occupancy of any indoor premises to 2% of the maximum stated capacity. Some impacted businesses include cosmetology shops, barber shops, beauty salons, hair braiding shops, nail salons, electrology facilities, spas, day spas, massage parlors, tanning salons, and tattoo parlors.

An article covering these restrictions can be found here.

The Executive Order can be found here.

What do employers need to do?
New Jersey businesses operating in the impacted industries should update their workplace practices to reflect the new requirements.

September 2020 New Jersey HR Legal Updates

New Jersey Department Of Labor Issues Final Regulations for COVID-19 Job Protection Law

What happened?
On March 20, 2020, New Jersey passed a new job protection law for COVID-19–related job loss scenarios. The New Jersey Department of Labor (DOL) released the final regulations to this law early September 2020.

What are the details?
The law generally protects employees from adverse actions when they take or request time off at the written or electronic recommendation of a medical professional licensed in New Jersey because they have or are likely to have an infectious disease that may infect others in the workplace. The regulations define “medical professional licensed in New Jersey” broadly to include, among others, registered nurses licensed by the state of New Jersey.

The law’s effectiveness is expressly tied to EO 103 and therefore, presumably sunsets following the expiration or revocation of the EO. As a reminder, EO 103 is the executive order establishing the state of emergency and declaring the public health emergency.

The law further provides employees with re-instatement rights and protections for seniority, status, benefits, pay, and other conditions of employment. An aggrieved individual may pursue a claim through the NJ DOL or initiate an action in a court of competent jurisdiction with potential remedies that include re-instatement and a $2,500 fine for each violation.

Additionally, the regulations provide that, upon expiration of a protected leave, the employer must re-instate the employee to the same position with no reduction in seniority, status, employment benefits, pay, or other terms of employment. However, if the employer had filled the position, the employee must be re-instated to an equivalent position. The regulations provide for an exception where the employee lost the position due to a reduction in force or layoff where the individual would have lost the employment in any event.

Finally, the Division of Wage and Hour Compliance, Wage Collection Section, will process all claims and conduct any necessary hearings pursuant to the statute. The NJ DOL will utilize the “ABC Test” to determine whether an individual qualifies as an “employee” entitled to the protections under the law.

EO 103 can be found here.

The act granting these job protections can be found here.

What do employers need to do?
New Jersey employers might need to provide training to management staff if any significant changes to workplace policy are needed. 

June 2020 New Jersey HR Legal Updates

Summary of State Laws (Q1 & Q2 2020)

Employee Classification
Several bills have been enacted that penalize employers for improperly misclassifying employees as independent contractors and inform employees of their rights. Among these laws are:

  • Effective January 20, 2020, joint liability will be imposed for employee misclassification on labor contractors that provide workers to an employer.
  • Effective January 20, 2020, New Jersey regulators may issue stop-work orders for violations of wage laws, including misclassification, and may require financial penalties for misclassification.
  • Effective January 20, 2020, the New Jersey Department of Labor and Workforce Development is permitted to post a list of wage-law violators on its website.
  • Effective April 1, 2020, employers are required to post notices in the workplace to inform workers of their rights under the state’s classification laws.

Family Leave, Sick Leave, and Temporary Disability Benefits
Effective March 25, 2020, New Jersey amended the New Jersey Earned Sick Leave Act, New Jersey Family Leave Act (NJFLA), and New Jersey Temporary Disability Benefits Law, which includes New Jersey Family Leave Insurance, in regards to leave and benefits for employees impacted by a state of emergency or a quarantine or isolation order due to a communicable disease by:

  • Expanding the list of qualifying reasons for use of paid sick leave.
  • Expanding the qualifying reasons for leave under the NJFLA, including the need to care for a child due to the closure of the child’s school or place of care due to a public health emergency.
  • Limiting the NJFLA’s key employee exemption.
  • Expanding the eligible reasons an employee may collect temporary disability insurance (TDI) benefits.
  • Eliminating the seven-day waiting period for collecting TDI for sickness related to an epidemic.

Effective June 17, 2020, eligible employees who return to work on a reduced basis while recovering from a disability will be paid a reduced amount of temporary disability benefits.

Effective July 1, 2020, the maximum duration for family leave insurance benefits is 12 weeks (previously six weeks) or 56 days (previously 42 days) taken on an intermittent basis. For temporary disability insurance and family leave insurance benefits, an employee’s weekly benefit rate is 85% (previously two-thirds) of the employee’s average weekly wage, up to a maximum of 70% (previously 53%) of the state average weekly wage.

Pay Statement
Effective May 20, 2020, employers with 10 or more employees must include the following information on employees’ pay statements in addition to the already required deductions:

  • Gross wages
  • Net wages
  • Rate of pay
  • Number of hours worked during the pay period (if relevant to the wage calculation)

Employers are permitted to provide pay statements to employees electronically, unless an employee requests statements in paper form.

Organ and Bone Marrow Donation Leave
Effective May 20, 2020, New Jersey’s Temporary Disability Benefits Law is expanded to provide job-protected leave to individuals who are unable to work because they are donating an organ or bone marrow. For purposes of donating an organ or bone marrow, the one-week waiting period for the payment of temporary disability benefits is eliminated.

 In addition, employers are eligible for a tax credit if they choose to provide a paid leave of absence to employees for bone marrow or organ donation and if such time is in addition to any other paid time off granted to the employee. The credit is equal to 25% of the employee’s salary during the time missed from work, for up to 30 days of missed work for each donation.

May 2020 New Jersey Legal HR Updates

Worker Misclassification

What happened?
A new posting has been released regarding workers’ misclassification.

What are the details?
Employers are required to post the notice, which explains: (1) employers cannot misclassify workers as independent contractors, (2) the state definition of an employee vs. independent contractor; (3) rights of the employee under the law; (4) New Jersey remedies for misclassification; and (5) contact information to file misclassification complaints.

What do employers need to do?
Post the required notice. 11 x 17 or 8.5 x 11.

Resources
https://www.littler.com/publication-press/publication/new-jersey-issues-new-posting-concerning- worker-misclassification

April 2020 New Jersey HR Legal Updates

Updates to Mini-WARN Act

What happened?
The governor signed a bill that makes critical changes to the NJ Warn Act which took effect on January 21, 2020, and postponed amendments to take effect on July 19, 2020.

What are the details?

  • The WARN amendments have been postponed until 90 days after the governor lifts the Emergency Order. Tentative effective date of law is August 6, 2020.
  • The new law has been amended to state the NJ WARN act cannot be triggered due to “fire, flood natural disaster, national emergency, act of war, civil disorder or industrial sabotage, decertification from participation in the Medicare and Medicaid programs…or license revocation.” This amendment is retroactive to March 9, 2020.

What do employers need to do?
No action necessary.

Resources
https://www.littler.com/publication-press/publication/new-jersey-warn-act-covid-19-amendment-pending-radical-expansion-law

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Paid Leave

What happened?
The governor signed a law that expanded the use of family leave due to COVID-19 retroactive to March 25, 2020.

What are the details?
Additional Leave

  • Employees may take leave to care for a child due to the closure of the child’s school or place of care or care for a family member with COVID-19 or a related illness.
  • Up to 12 weeks of unpaid job-protected leave within a 24-month period.

Applicable Leave

Employees may request leave for the following reasons:

  1. In-home care or treatment of an employee’s child due to closure of public school or place of care;
  2. Under the requirement of a mandatory quarantine; and
  3. Healthcare provider or public health authority recommending a family member under the employee’s care voluntarily under self-quarantine.

Certification

  • For reason 1: The date when the closure began and the reason for the closure.
  • For reason 2: The date the public health authority issued the determination and the date of the determination.
  • For reason 3: The date of the recommendation, likely duration of the condition, and medical or other facts related to the condition known to the public authority or healthcare provider.

Additional Details

  • Employers may not deny leave for highly compensated employees.
  • Intermittent leave is permitted for the following reasons:
    • The covered individual notifies the employer of the need for leave as soon as practicable and
    • The employee makes a reasonable effort to schedule leave to not unduly disrupt the employer’s operations. A schedule of the time off needed is beneficial, but not required.

What do employers need to do?
Comply with the above.

Resources
https://www.seyfarth.com/news-insights/paid-leave-and-coronaviruspart-xii-more-new-jersey-covid-related-paid-leave-amendments-including-school-closure-leave-signed-into-law.html

March 2020 New Jersey HR Legal Updates

Pre-Tax Transportation Fringe Benefits

What happened?
New Jersey passed a law which requires employers to offer pre-tax commuter benefits to employee’s effective March 1, 2020.

What are the details?
Employees can use pre-tax benefits to pay for “alternate means of commuting” which would include public transportation, carpools, telecommuting, bicycles, and walking. Individuals who are not in collective bargaining agreement beginning March 1, 2020.

What do employers need to do?
Ensure transit is being offered pre-tax to your staff.

Resources
https://www.njtransit.com/var/var_servlet.srv?hdnPageAction=CommuterTaxTo

January 2020 New Jersey HR Legal Updates

Final Regulations for Earned Sick Leave Law Released

What happened?
The New Jersey Department of Labor and Workforce Development (the “Department”) issued regulations regarding enforcement of New Jersey’s Earned Sick Leave Law (ESLL), as well as its responses to comments about the initially proposed regulations on January 6, 2020. The final regulations contain minimal changes and therefore do not require additional public notice or comment.

What are the details?
One notable change from the proposed regulations is the deletion of language requiring employers to establish a single benefit year for all employees, which would have prohibited employers from defining the benefit year based on an employee’s anniversary date.

The Department declined to adopt that provision and indicated it will propose a new rule in the future to enable employers to establish multiple benefit years. The final regulations did not, however, affect the processes through which an employer may change a benefit year. 

Once the benefit year is established, employers can change it only by providing written notice to the Department at least 30 days prior to making the intended change. Such notice must include the proposed new benefit year, the reason for the change, and a list of employees with contact information and each employee’s two-year history of accrual, use, payment, payout, and carryover of earned sick leave. If the Department determines that an employer is changing the benefit year to prevent accrual or use of leave, it may impose a benefit year on the employer.

The Department clarified that if an employer chooses to maintain a single paid time off (PTO) bank to comply with the ESLL, the entire PTO bank must comply with the requirements of the ESLL. 

Thus, if an employer wants to satisfy its obligations under the ESLL with, for example, its single bank of 80 hours of PTO (which may be used for any purpose, including sick time, vacation, personal days, etc.), it must permit employees to use all 80 hours in accordance with the ESLL. This approach means employees would be permitted to use all 80 hours for sick time without providing advance notice to the employer and such absences could not be held against employees or counted under the employer’s attendance policy.

What do employers need to do?
Employers should review their current sick leave policies to ensure compliance.

Bill: https://www.nj.gov/labor/earnedsick/index.html

Article: https://www.littler.com/publication-press/publication/new-jersey-department-labor-releases-final-regulations-earned-sick

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Warn Act Signed into Law

What happened?
On January 21, 2020, the Governor of New Jersey signed Senate Bill 3170 into law, pushing state law far past the corresponding federal requirements of the WARN Act. Governor Phil Murphy issued an omnibus press release identifying this new law as one of 153 pieces of legislation he signed into law on January 21, 2020. The law is scheduled to go into effect 180 days after the date of its enactment, which is July 19, 2020. Would make New Jersey the first state to require severance for layoffs of 50 or more within a 30-day period, while also vastly expanding the definition of “employer,” as well as including all part-time employees within the statute’s calculations.

What are the details?
As presently drafted and revised, S.3170 will change the scene for employers looking to establish sites in New Jersey and those contemplating whether to remain or grow there. The proposed amendments would result in significant changes, including:

  • Increase Notice. 
  • Part-Time Employee Coverage. 
  • Add a Severance Benefit and Enhance Severance Penalties. 
  • Eliminate Waivers. 
  • Make Everyone an Employer.

What do employers need to do?
Employers that are contemplating closures or mass layoffs should consider accelerating their analysis so as to utilize the 180-day safety period until the effective date of July 19, 2020 is reached. 

Bill: https://www.njleg.state.nj.us/2018/Bills/S3500/3170_R3.PDF

Article: https://www.seyfarth.com/news-insights/new-warn-act-signed-into-law-thou-shall-not-leavea-new-jersey-bill-awaiting-signature-by-the-governor-would-dramatically-re-write-existing-mass-layoff-laws.html 

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Misclassification Laws: “Misclassification Package”

What happened?

The five new laws signed by Governor Murphy, referred to as “The Misclassification Package,” are meant to address misclassification of independent contractors by greatly increasing the DOL’s ability to enforce wage and hour and tax laws. The new laws also broaden private rights of action under New Jersey’s wage and hour laws and add joint and personal liability for contractors’ violations of tax and benefit laws.

What are the details?

  1. Stop Work Orders (A5838) – This new law gives the Commissioner of Labor the ability to issue a stop work order against any company that the DOL determines is not in compliance with any wage, benefit, or tax law.
  2. Joint, Several, and Individual Liability (A5840) – This new law amends New Jersey’s wage and hour laws and tax laws (which include the unemployment law, temporary disability law, workers’ compensation law, and gross income tax law), creating joint and several liability for “Client Employers” and “Labor Contractors.”
  3. Additional Penalties (A5839) – This new law allows the Commissioner of Labor, upon a finding of misclassification under any state wage, benefit, or tax law, to assess penalties in addition to those provided by the other statutes.
  4. Retaliation Cause of Action & Posting (A5843) – This new law creates a private cause of action for discharge or discrimination against employees or contractors who inquire or complain about misclassification. Unlike the other laws in The Misclassification Package, this law does not take effect until April 1, 2020.
  5. Sharing of Confidential Tax Information (S4228) – This bill allows the Department of Treasury to provide the DOL with tax information, audit files, returns, or any other information that would assist in investigating wage, benefit, or tax law violations.

What do employers need to do?
Due to individual liability, the owners of the company would be liable for the assessment and fines, even if the company goes out of business. This is one simple illustration of the power of these new laws. It is strongly recommended that all companies review 1099s issued in 2019, along with reoccurring payments from cash ledgers, and reevaluate those relationships in light of these new laws.

Bill: Stop Work Orders A5838 Joint, Several and Individual Liability A5840; Additional Penalties A5839; Retaliation Cause of Action & Posting A5843; Sharing of Confidential Tax Information S4228

Article: https://www.fordharrison.com/the-gig-is-up-new-jersey-misclassification-laws-create-extreme-risk-for-anyone-utilizing-independent-contractors

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Proposed Regulations to Affect All Employers Utilizing Tip Credits

What happened?
The New Jersey Department of Labor (NJDOL) has proposed regulations revising the current definition of “wages” to expressly exclude “any gratuities received” by a tipped employee from the employer’s obligations under the state’s hourly minimum wage requirement. The proposed regulations also define exceptions to the state’s minimum wage increases through 2024 and identify the minimum rates across all potential definitions of “employment.”

What are the details?
The proposed regulations follow federal law. They define a “tipped employee” to include “any employee engaged in an occupation in which he or she customarily and regularly receives more than $30 a month in tips.”

  • The NJDOL proposal sets out the cash minimum an employer must pay an employee to lawfully utilize the tip credit against the planned state minimum wage increases over the next several years. If the employer does not utilize the tip credit, even where an employee receives $30 or more a month in gratuities, the employer must pay the applicable minimum wage. The regulations expressly apply the tip credit on a workweek basis.
  • The proposed regulations prohibit an employer from utilizing any portion of the gratuity for any reason other than wages or in furtherance of a tip pooling arrangement. The prohibition expressly extends to an employer using a portion of the gratuity to offset any credit or debit card processing fees; the employer must pay to convert a customer’s credit or debit card tip into an employee’s wages at no cost to the employee.
  • The proposed regulations also acknowledge the lawfulness of voluntary tip pooling arrangements. Under such circumstances, the employer would have an affirmative obligation to notify employees of the required tip pool contributions. The employer may only take a tip credit in the amount an individual employee receives through the pool.
  • The NJDOL’s proposed regulations adopt the 80/20 rule the DOL abandoned because of the confusion and burden they put on employers. The proposed regulations state, “here a tipped employee spends a substantial amount of time (in excess of 20 percent in the workweek) performing related duties, no tip credit may be taken for the time spent in such duties.”

What do employers need to do?
A public hearing on New Jersey’s proposed regulations is scheduled for February 26, 2020, and comments will be accepted through April 3, 2020. Employers who employ tipped employees should carefully review their current practices against the proposed regulations and determine their potential business impact.

Article: https://www.jacksonlewis.com/publication/tipping-new-jersey-proposed-regulations-affect-all-employers-utilizing-tip-credits